The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamian entrepreneur battling to restore Paradise Island’s lighthouse yesterday thanked the Government for “putting down their gloves” by not opposing his Privy Council appeal.

Toby Smith, speaking after he received conditional permission to take his Crown Land lease fight before the Bahamian judicial system’s highest court, told Tribune Business he was not “having a dig” at the Government but genuinely hoping its approach to the Court of Appeal hearing could pave the way for both sides to “start afresh”.

The Attorney General’s Office, acting as the Government’s legal representative in the dispute with Mr Smith, filed no documents opposing the latter’s bid for permission to take his case to the London-based Privy Council. And Kirkland Mackey, who acted as its lead attorney at the Court of Appeal hearing, “conceded” it was an “as of right “ appeal and that all necessary procedural steps had been taken by Mr Smith.

“We’re actually grateful to the Office of the Attorney General for putting down their gloves and conceding to a win for Paradise Island Lighthouse and Beach Club,” Mr Smith said in reference to his company. “I genuinely appreciate that they have conceded and hopefully this is a sign of things to come where they choose not to fight me at the Privy Council and we start afresh. That would be nice.

“This is not a dig at the Government. I recognise the olive branch that has been extended by the Attorney General’s Office, and it is our hope this goes to the root of the matter where the minister responsible for Crown Land honours the agreement for the lease.”

Despite losing at both the Supreme Court and Court of Appeal, Mr Smith’s argument that he possesses a valid, legally binding lease agreement for a total five Crown Land acres on Paradise Island’s western end was given new life when he split the latter court over its verdict.

Sir Michael Barnett, former Court of Appeal president, gave a dissenting judgment where he said he would order “specific performance of the lease” by the Government as Mr Smith had “a binding agreement” to lease the two Crown Land parcels for a beach break-type destination and the restoration of Paradise Island’s lighthouse built in 1817. This strengthened Mr Smith’s case for one last appeal to the Privy Council.

Appeal justice Stella Crane-Scott, delivering the Court of Appeal’s oral ruling on the Bahamian entrepreneur’s Privy Council bid, said of the Government’s position: “There were no submissions filed by the Crown.

“This fact notwithstanding, counsel for the crown, Mr Mackey, conceded that the appeal is an ‘as of right’ appeal pursuant to section 23(1) of the Court of Appeal Act, and that the procedural requirements have been met.”

Her July 11 verdict added: “Having regard to the guidance of the Board [Privy Council] set out in authorities of which we are well aware, while the court has no discretion to exercise in these types of appeals, all we are required to do is to determine whether the appeal raises a ‘genuinely disputable issue’, meaning that this is not an abusive appeal that is headed off to their Lordships.

“Having considered the matter and having regard to what Mr Mackey himself said, we are convinced this is a case for which conditional leave must be granted, and that is the order that must now be made.” The Court of Appeal thus gave Mr Smith permission to head to London provided that, within 90 days, he pays a $2,861 security to cover costs associated with the appeal and sends the relevant documents to the UK.

The Bahamian entrepreneur told Tribune Business his case remains “of high public importance” given that it raises issues of how publicly-owned Crown Land is used for the benefit of the Bahamian people; whether Bahamian and foreign investors are treated equally; and the restoration of “abandoned” national landmarks such as the Paradise Island lighthouse.

“It involves Crown Land that belongs to the Bahamian people being fought by the Government of The Bahamas while favouring a foreign entity with express treatment,” Mr Smith asserted, referring to the lease the Government has agreed with Royal Caribbean for its Paradise Island beach club on adjacent land while continuing to battle him in the courts.

“Look at Athol Island and the way legitimate Bahamian entrepreneurs have gone down the right path in applying for Crown Land, while cronies are given a free pass; a free all-access pass, and legitimate entrepreneurs must stand aside and back.

“The lighthouse project is a prime example where Bahamians are sidelined in favour of foreigners and cronies, and Paradise Island Lighthouse and Beach Club intends to demonstrate that we and many other Bahamians have had enough. We are bold enough to challenge them and will win.”

Mr Smith reasserted that he is willing and able to begin his $2m beach club and lighthouse restoration “immediately” should the Government commit to honouring the Crown Land lease. “We could start this afternoon,” he said, “and we won’t be deterred by the bureaucracy and red tape that Bahamians are faced with either.

“We will start immediately and ask questions later. Full financing is in place as it always has been - over-subscribed with full Bahamian ownership.” Mr Smith explained that the business model was structured such that the revenues generated by the beach break-type destination would finance the Paradise Island lighthouse restoration and help revive a building of historical significance.

“The significance of the lighthouse is at the very centre and origin of this project,” he added, “and, while being the oldest lighthouse in this region, our dozen lighthouses - with the exception of Elbow Reef - have all but been abandoned and are in dire need of restoration. It’s the Government that is fighting against Bahamians wanting to revive them, as they have done in my case.

“The beach club was the origin of our endeavour to generate revenues to finance the restoration of a major landmark and the first sight entering the western entrance of Nassau harbour.” Mr Smith confirmed that Sir Michael Barnett’s dissenting judgment in his favour provides “amazing support towards our case” and its Privy Council destination.

“I believe in the autonomy of the Privy Council, away from this jurisdiction, and with a simple read of Sir Michael’s ruling, it makes a very strong case for the benefit of the people in The Bahamas,” he added.

The Davis administration previously requested that Mr Smith “reapply” for the necessary government permits and approvals so that his project can proceed after he lost the original Supreme Court case. Little is likely to change in this regard until the outcome of the Privy Council appeal.

The Court of Appeal, in its majority verdict, said the dispute centred on a 21-year lease that the then-Minnis administration allegedly granted Mr Smith for the use of two Crown Land parcels - one two acres in size, the other three - on the western end of Paradise Island in the Colonial Beach area.

Noting that the initial application was made more than a decade ago in 2012, it added that some six years later the Bahamas Investment Authority (BIA), via a May 23, 2018, letter informed Mr Smith that his $2m beach club project had been approved. However, rather than the 17 acres initially sought, the Crown Land lease was to cover just five.

Then, on January 7, 2020, Richard Hardy, acting director of the Department of Lands and Surveys, sent Mr Smith and his company a letter headlined “approval for Crown Land lease”. This covered a two and three-acre parcel, respectively, with the first adjacent to the lighthouse at Paradise Island’s western end and the other for the ‘beach break’ destination.

The letter contained instructions on how the attached lease documents were to be signed, dated, sealed and notarised, then returned to the Department of Lands and Surveys. Once the minister responsible for Crown Lands, who was then-prime minister Dr Hubert Minnis, signed a copy of the lease was to be returned to Mr Smith.

The Bahamian entrepreneur signed the lease forwarded by Mr Hardy, and returned it to the Government for execution two days later on January 9, 2020. Dr Minnis, though, did not sign the lease on the Government’s behalf as it emerged that Royal Caribbean had rival designs on the three- acre Crown Land parcel for its own Royal Beach Club project.

Sir Michael, though, found that the Government did not sign the agreement with Mr Smith because it “determined it had found a better deal” - namely Royal Caribbean Cruise Lines’ Royal Beach Club project, which itself wanted to lease three of the same acres sought by the Bahamian entrepreneur.

He added that he would have ordered “specific performance of the lease” by the Government. Describing Mr Hardy’s letter as being of “major importance”, the then-Court of Appeal president said the letter was headlined “approval for Crown lease” and did not say or suggest there were any matters left to be agreed between the parties.

“In my judgment, the critical question in this appeal is whether the letter of January 2020 evidenced a binding agreement between the appellant and the minister for the lease of five acres of land on Paradise Island,” Sir Michael wrote. “The Chief Justice formed the view that there was no concluded agreement.

“It is difficult to see how it can be said that there was no concluded agreement. The lease sent on January 7, 2020, had been prepared by the respondent’s [Attorney General’s] lawyers on the respondent’s instructions. There was nothing further to be negotiated and agreed....

“The document reflecting the terms of the agreement was sent by the respondent to the appellant for signature. All that was left was for the respondent to sign and seal the lease. He did not do so because the Government determined that it had found a better deal.”